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Perdomo v. City of Kenner

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

CANDIDO PERDOMO
v.
CITY OF KENNER AND VEOLIA WATER LOGISTICS LLC D/B/A VEOLIA WATER

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 699-738, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CANDIDO PERDOMO Anthony L. Glorioso D. Steven Wanko, Jr.

          COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER Michael D. Peytavin William D. Dunn

          COUNSEL FOR DEFENDANT/APPELLEE, VEOLIA WATER NORTH AMERICA-SOUTH, LLC Robert E. Kerrigan, Jr. Raymond C. Lewis

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         Plaintiff, Candido Perdomo, appeals the district court's July 5, 2017 judgment granting summary judgment and dismissing with prejudice Mr. Perdomo's claims against defendants, City of Kenner and Veolia Water North America-South, LLC. After our de novo review, we find plaintiff is entitled to relief, reverse the judgment of the district court, and remand the matter for further proceedings.

         FACTUAL AND PROCEDURAL HISTORY

         On March 25, 2011, Mr. Perdomo filed suit against the City of Kenner and Veolia Water North America-South, LLC seeking damages for injuries he sustained on May 11, 2010 while employed by Ramelli Janitorial Service as a garbage "hopper" collecting garbage for the City of Kenner.[1] Mr. Perdomo was injured when a portion of the concrete surface on 27th Street near the intersection of Salem Street collapsed underneath the right rear wheels of the garbage truck on which he was riding.

         Following discovery, Kenner and Veolia moved for summary judgment, arguing that Mr. Perdomo could not succeed on his cause of action because he could not satisfy his burden of proving the element of notice[2] as required by La. R.S. 9:2800 and La. C.C. art. 2317. In support of its motion for summary judgment, Kenner submitted an affidavit of Jerry Dillenkoffer, the Assistant Director of Public Works for the City of Kenner, and an affidavit of Joanne Massony, a project manager with Veolia. Similarly, Veolia submitted in support of its motion the Massony and Dillenkoffer affidavits, a deposition of Ms. Massony, and a deposition of Dennis Dufour, a maintenance manager with Veolia.

         In support of his opposition to Kenner and Veolia's motions for summary judgment, Mr. Perdomo submitted the Massony and Dufour depositions, a deposition of Mr. Dillenkoffer, a July 2009 newspaper article, an affidavit and deposition of Scott Troxclair, as well as affidavits of Josette White, Alisha Hamilton, Natalie Thomas, and Terri Williams.

         In Mr. Dillenkoffer's affidavit and deposition, he explained that along with the Kenner Police Department, the Weights and Standards Division of the Department of Public Safety investigated the scene of the accident. Through this investigation, it was determined that the rear axle of the garbage truck was overweight by 4, 700 pounds.

         Mr. Dillenkoffer, through his inspection of the scene, observed a leaking sewer line that he believed caused the street's collapse. Mr. Troxclair, a plumber retained by plaintiff, also examined the scene of the accident and similarly opined that the leaking sewer line had eroded the subsurface of the street and led to its collapse. He inferred from the extent of the subsurface erosion that the leak must have been ongoing for quite some time.

         Mr. Dillenkoffer explained that the Kenner Department of Public Works does not have a plan for periodic inspections of public streets and the department relies on citizen complaints as the primary means of identifying issues with infrastructure. Prior to the accident, Mr. Dillenkoffer was not aware of any complaints of potholes, sinkholes, or any other issues with the surface of 27th Street at this location. He also attested that city complaint logs do not reflect any complaints about the condition of the street or sewerage near the accident site.

         Mr. Dillenkoffer further stated that the department did not operate or maintain the Kenner sewerage system in 2010, as Veolia was under contract to operate and maintain the Kenner sewer system since 1995.

         In the affidavit and deposition of Joanne Massony, a project manager with Veolia, Ms. Massony explained that Veolia had received no complaints of potholes, sinkholes, or any sewerage-related issues at the 27th Street location prior to the accident. Ms. Massony added that Veolia routinely inspects the sewerage lift stations throughout Kenner on a weekly basis. This accident occurred immediately adjacent to Lift Station No. 4341. The weekly inspections of this lift station did not reveal anything to suggest that the system was in disrepair or was creating a condition that would compromise the structural integrity of the street surface. In fact, Dennis Dufour of Veolia confirmed that the weekly inspection of Station 4341 was completed the day before the accident, on May 10, 2010. This inspection revealed no problems with the system. The lift stations are also outfitted with a wireless notification system designed to provide real-time diagnostics on the stations. This system never alerted Veolia to any potential issues with Station 4341 prior to the accident.

         Regarding a leaking sewer line, Ms. Massony explained that "the only way" Veolia would discover such a leak would be "through people calling or visually seeing…subsidence" that would prompt Veolia to further investigate and test for leaks.

         Ms. Massony added that impellers on one of the pumps in Station 4341 had been replaced in February 2010 due to normal wear and tear. At the time of this replacement, there were no observations of any potential problems or subsurface conditions that suggested the street was susceptible to collapse.

         Ms. Massony also explained that in June 2005, Veolia received a request from the Department of Public Works to inspect a sewer line on 27th Street because subsidence had been observed on the opposite side of the street from the accident site. Veolia's inspection revealed no issues with the sewer line, but it was determined that a potable water line, a responsibility of Jefferson Parish, was a contributing factor to the subsidence. Repairs were made at that time.

         The July 2009 newspaper article offered by Mr. Perdomo reported the commencement of an infrastructure project to rebuild Kenner's sewer system because, as the newspaper quoted Deputy Chief Administrative Officer, Prat Reddy, "We have reached a sewerage crisis in Kenner[.]" Allan Katz, Kenner Ready to Embark on $15 Million Phase I Rebuilding of Sewage System, Kenner Star, July 2009, Vol. 18 No. 7, at 1.

         Ms. White, Ms. Hamilton, Ms. Thomas, and Ms. Williams all resided near the site at the time of the accident. They all stated in their affidavits that the ground adjacent to the street near the accident site had been "soggy" prior to the accident, and all except Ms. Hamilton reported foul sewage odors emanating from the area around the site before the accident. Along with her complaint about sewage odors, Ms. White had also lodged a complaint with the City of Kenner about the backup of sewage in her home.

         Ms. Massony acknowledged that Veolia had received several odor complaints from residents near the accident site, but that no issues were found with the sewerage system during the inspections made in response to these complaints. Mr. Troxclair explained in his deposition that even properly operating lift stations commonly emit sewage odors. Ms. Thomas and Ms. Williams further recounted that a large crack in the street surface had formed near the site, and Ms. Thomas recalled that it had been patched on two occasions prior to the accident.

         At the conclusion of the hearing on the motions for summary judgment on June 19, 2017, the district court granted summary judgment in favor of Kenner and Veolia. The court found that Mr. Perdomo could not prove the notice element of his claim. In the signed judgment that followed on July 5, 2017, the court granted summary judgment in favor of Kenner and Veolia and dismissed with prejudice Mr. Perdomo's claims against these defendants.

         On July 17, 2017, Mr. Perdomo filed a motion for new trial, arguing that the court's judgment was contrary to the law and evidence. Following a hearing on August 18, 2017, the district court denied this motion in a judgment dated September 19, 2017. Mr. Perdomo ...


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